2010 (3) TMI 544 - HC - Income Tax

Revision - A notice was issued on February 9, 2007 by the Commissioner of Income-tax (Central) to the assessee to show cause why the order of assessment should not be revised in exercise of powers under section 263. The assessee responded to the notice following which an order was passed on March 26, 2007 by the Commissioner of Income-tax (Central) under section 263, setting aside the order of block assessment and directing the Assessing Officer to pass a fresh order of assessment. Held that - order of Assessing Officer not erroneous. Commissioner taking a different view. Commissioner cannot set aside order of Assessing Officer u/s 263.

Issues Involved:
1. Validity of jurisdiction invoked under section 263 of the Income-tax Act, 1961.
2. Applicability of section 40A(3) regarding cash transactions.
3. Determination of initial investment or seed capital.

Detailed Analysis:

1. Validity of Jurisdiction Invoked Under Section 263:

The primary issue is whether the Income-tax Appellate Tribunal was right in holding that the second respondent had validly invoked jurisdiction and exercised powers under section 263 of the Income-tax Act, 1961.

2. Applicability of Section 40A(3):

During the block assessment proceedings, a special audit under section 142(2A) was called for by the Assessing Officer, which included scrutiny of cash transactions under section 40A(3). The audit report noted that it was not possible to determine if any individual payment exceeded the limits specified under section 40A(3) due to consolidated figures in the seized documents. The assessee argued that undisclosed transactions were outside the purview of section 40A(3), supported by various Tribunal decisions.

The Assessing Officer, in response to an internal audit query, concluded that the provisions of section 40A(3) were not applicable, relying on Tribunal decisions. This view was affirmed by the Commissioner of Income-tax (Central). However, a notice under section 263 was later issued by the same Commissioner, contradicting his earlier stance.

The court found that the Assessing Officer had indeed considered the applicability of section 40A(3) during the assessment proceedings. The Tribunal's finding that the record did not contain any discussion on this issue was erroneous. The court held that a possible view taken by the Assessing Officer, supported by Tribunal decisions, could not be revised under section 263. Thus, the exercise of power under section 263 on this ground was not sustainable.

3. Determination of Initial Investment or Seed Capital:

The second ground for invoking section 263 was the alleged failure to consider the higher turnover in the latter part of the block period while determining the initial investment. The Commissioner of Income-tax (Appeals) had estimated the initial investment at Rs. 10 lakhs based on the average turnover of the first three years of the block period and considered the undisclosed profits ploughed back into unaccounted trading.

The court noted that the Commissioner of Income-tax (Appeals) had indeed considered both the initial investment and the profits ploughed back in unaccounted trading for the entire block period. The Revenue had already filed an appeal before the Tribunal challenging the correctness of this determination.

The court observed that the power under section 263 could not be exercised where the issue had been "considered and decided" in an appeal. Since the Commissioner of Income-tax (Appeals) had considered and decided the issue, the invocation of section 263 was not warranted. The Revenue's remedy lay in the pending appeal before the Tribunal.

Conclusion:

The court concluded that the invocation of jurisdiction under section 263 was invalid on both grounds. The Assessing Officer had taken a possible view on the applicability of section 40A(3), and the issue of initial investment had been considered and decided by the Commissioner of Income-tax (Appeals). The appeal was disposed of by answering the question in the negative, in favor of the assessee and against the Revenue, with no order as to costs.

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